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IN THE SGtPRF.^IE COURT OF OHIO

I7^roth^.^ Fo^^dessy

Appeilee^

v.

Anthony Simon

Appellant

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On Appeal frorn the Ottawa

County Court of Appeals

S.ixth Appellate District

Court of A^peals

Case No. OT-11-041

NOTICE OF CERTIFIED COl`^FLICT OF ^.PPELLANT ANTHONY SIYION

We^ley M. Mzl.ler Jr. (0043875) (COti^1SEL OF RECORD)P.O. Box 35253^Toledo, OH 43635Phone: 419-508-7^8^92Fax Ttio:567-225-3(}00wes C wesleymillerlaw.com

COUNSEL FOR APPELLANT, AilrTHONY 511VIOPv

Ernest E. Cottrell, Jr. (0030541)^21980 W. State Route 51Genoa, Ohio 43430Phone: 419-855-9955Fax No: 419-855-9933ecottrell C^ amplex.^^et

COIJNSEL P'OR APPELLEE, DOROTHY FONDESSY

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Notice of C'ertified Cottfliet of Appellant Anthony Simon

Appellant Anthony Siznon hereby gives notice of a certified conflict to the

Supreme Court of Ohio from a decision of the Ottawa CountyCourt of Appeals, Sixth

Appellate District, entered in Court of Appeals case No. OT-11-041 on September 20,

20 13.

Attached, pursuant toS.Ct.Prac.R. 8.01, are copies of the respective opinions to be

considered: the decision and judgment from the Sixth District Court of Appealscerti:fying

the conflict in the captioned case;the opinion from the Mahoninb County Court of

Appeals, Seventh Appellate District in Caban v. Ransome, 7"i Dist. No. 08 MA 36, 2009-

Ohio-1034; the opinion from the Hocking County Court of Appeals, Fourth. Appellate

District in Sfnath v. Wttnsc62, 1 C2 Ohio App.3d 21, 2005-Ohio-3498, 832 N.E.2d 757,

(4thDist);the opinion from the Summit County Court of Appeals, Ninth Appellate District

in State v. Payne,1.78 Ohio App.3d 617, 2008-Ohio-5447, 899 N.E.2d 1011, (9" DzsC.).

Re,,epectfull

Wesley

itted'I

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ler Jr.

COUNSEL FOR. APPELLANT,ANTHONY SIMON

2

CERTIFICATE OF SERVICE

I hereby certify that on September30, 2013 the foregoing was sent via U.S. mailto Ernest E. Cottrell Jr. at 21980 State Rte. S 1W. Genoa, OH 43430-1252, Counsel forAppellee. ^ ?

Wesley M. ^jl)er Jr.

3

COURT OF AP

F6LE'DCOURT OF APPEALS

SEP 20 201.3

GARY A. KOHLI CLERKOT-nMN.,y, COUNj' Y

09r`20?`2013 09. 06 41922134844

Dorot,1iy Fondessy

.A.ppeiicc

v.

Anthony Simon

Appellant

Court of Appeals 'No. QT-11-t141

Trial Court No. ,1.1.-CV-5 ] SFI

DE^'.T,SI!ClN .A.NTDJLmGI1!YENT

Decided: SEP 2 0 2013

This matter is before the court oil the motion of defendant-appell.ant, Anthony

G'NGE ^1r' J5

Sixnon, to certify this casR:: to the Supreme Court of Ohio on the ground that tbe judgment

rendered by this court. on Ati.aust 9, 2013,.is incon€i,ict witb. decisions of several other

Ohio District Courts of Appeals, h.ppcllec, Dorothy Fon,dessy, has filed a contra

weyn.oranduzxz.

In our decision of August 9, 2013, we a^'fxmed the judgment of the 'Lrial court

which entered a civil stalking protection order («CSPU") against appollaiit for the

protcctzoYi, of appelJee Dorothy Foaidessy and l)er htisband Wayne For.dessy. In

1.

IN THE COURT OF A.I'I'E'ALS OF OHIOSIX7,'H APPELLATE DISTR,I.CT

OTTAWA GOU-NTY

... - ^,

09/20;'2013 09: 06 41 t?134e44 G[]UP'1" OF Ai=' PAGE 02105

particular, we concluded that tXicre was cornpeternt, credible evidence to support the trial

court's .I u.dgment.

Pursuant to Section 3(B)(4), Article IV of the Ohio Constittition, "[w]henever the

judges of a court af appeals f.ind that a.jud.ginent upon which they bave agreed is in

conflict with a judgment pronounced upon the same question by any other co-Lirt of

appeals c+fthe state, the judges shall eez°kify the rec.ord of the case to the supreme court for

review and final. detex-inin.ation." The Ohio Supreme Court has set fortlz three

requirements that must be met in order for a case to be certified:

First, the certifving court rnust fmd that itsjudgrnent is in conflict

^vith the .judgznent of a court of p.ppeals of aziother district azid the asserted

conflict must be "upon the same question." Second, the alleged coiiflict

must be on. a rule of law - not fa.cts. Tkrird, th.ejournal entry o.r, opiii.ion of

the certifying court must clearly set forth that rule of law which the

certifying court contends is in conr`Iict -'^'zth the,judginent on the same

question by other distr,ict courts of appeals. TElaitelock v. ..t'`^'riXbcrne Rldg.

Co., 66 Ohio St3d 594, 596, 613 N,E,2d 1.032 (1993).

Appellant asserts that our decision iri this case is a.n, conflict with the decisions of

several other appellate districts ori the issue of our iuterpretation of the "mental distress"

a petitionet:lnu.st prove ;For a court to grarzt. a. pet.iti.on. for aCSPO.

As we discussed in oux decision of August 9, 2013, for a trial court to grant a

CSPO, the petitioner must show by a pzeporzdc.rance of the evidence, that the complained

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09,r'20/2013 05: 06 4112:134844 COURT OF fiP P t5 7/y ^ E ^^J1^J._I^" (^ ^

of conduct violates the menacing by stalking staiute. R.C. 2903.2 1 l(A)(Z) proscribes

menacing by stalking and reads; "No person by engaging in a pattern Q.f conduct shall

knowingly cause another person to believe that the offender will cause physical harin to

the other person or cause inental distress to the other persoza," This court has can.sist:en.tly

hcl.d that the statute "does not require that the victim aettially experience mental distress,

but only that the victim believes t?.1o stalker would cause mental distress or physical

harm," En,sZei, v Glover, 6th Dist. Lucas No. L<m11-1025; 2012-Ohio-4487,^, 1:3. Iia the

present case, we relied on this i:nterpretation in concluding that appellee had established

the eleitlents for the court to order a. CSPO. It is this interpretation with whieh appel.lant

contends there is a conflict among the Ohio District Courts of Appeals.

'l-`h.is court follows the interpretation of a majority afthe Ohio District Courts of

Appeals. See Grigcz v. DiBeneddfo, Xst Uist, Haiiiilton No. C-t20300, 2012-01a.io-6097,

Tj 13; C7ayfoix v. Davis, 136 Ohio App.3d 26, 32, 735 1`I.JE.2d 939 (2d Dist.1999);

Holloway v. Bcrrlcer, 3d Dist. Marion No. 9-12-50, 2013 -Ohio- 1940, T 23; Bloom v.

Afacbelh, 5ti,, Dist, Ashland No, 2007-CClA-050, 2008-Ohao-4564, ¶ 11; Ruferxr° v,

Hutson, 8th Dist. Cuyahoga No. 9763 5, 2012-Ohio-506 1, ^ 13; Cooper v. .Manta, I 1th

Dist. Lake No, 201.1 -L-035, 2012-Ohio-867, ¶ 33; and State v. Hart, 12th. Dist. Warren

No, CA2008-O6-07 9, 20(}9-Ohio-997, T 31.

Several other Ohio District Courts of Appeals, ho-weuer, "proceed as if the test is

whether lnental, distress was in fact eaused." Caban v. Ra.nsorne, 7th. Dist. Mahoning No.

p$M^1- 36, 2009-Ohio-1034, ^j 23. See also Smith v, YYunscTz, 162 Ohio App.3d 21,

3.J i V

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F_t9,`?0??01.J @°. 0h 4192134844 COURT OF AP PAGE 04/05

2005-Ohiow349$, 832 N.E.2d 757, ^; 21 (4fh Dist.); 4S'tcrte v. Pa^.pne, 178 Ohit^ App.3d 617,

2008-C?hic?-5447, 899 NZ.2d 1011, ; 10 (9th Dist,).

Accordingly, we find that theze is a conflict with our decision of .hiigust 9, 2013,

and the dec:isi.or.}s of the Seventli, Foulth and.'1~T.iztt.h District Courts of Appeals i:n. c„'alaan,

Sraairlr, a.nd. Pq)>ne on the i.ssue of whether R.C. 2903.2Z 1(Af(1) requires a victim to

^f.'. 9af.i 4xpli^:-

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physical harm or zn:ental, distress, for a cotirt to issue a CSPO.

Appellagit further appears to argue that our decision is in conflict with decisions of

t.^ie Sevezith and Terith District Courts of Appeals o.n the issue of the "knowingly"

elei-nen:t that must be proven £or the issuance of a CSPO. Appellant cites to Darling v.

Darlirzg, 7th Dist. JeffersotiNos. 06 ;l'L 6, 06 JE 7, 20(}7-QhioT3151, and Jenkins v.

Jenkins, 10th Dist. Franklin No. 06A,Pr 652, 2O07-0:h.1.o-422, in suplaoit. Neither of these

cases conflict with our decision on the issue of knowiigly. While Darling does conflict

with our decision on the issue ofinental distress, that case is from the Se.venth: Da.str.ict

Court of Appeals, tlle samc court with which -we have already identified, a conllict as

stated above. Moreover, Jenkins follows the same interpretation af. R.C. 2903.2 11(A.)(1)

that this court follows. See Jenkins, szrpt a, atT 1: S.

Tiiicling a conflict in our ruling and those of tlie Fourth, Seventh and Ninth District

Courts of1-Lppeals, we hereby grant appellant's motion and ceriify the record in this case

for review and final detexrninati.ran. to the Supreine Court of Ohio on, the following issue:

Whether, R.C. 2903.211(A)(1) requires a victim to actczally experience inezatal distress or

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^^^r/2 ^1^ ED 9.35 41y2134:_^14 COURT OF ^,P P^i^^E 05i05

only believe that the stalker wi,1I cause the victiln physical har.m or mental distress, for a

court to issue a civil stalking protectaon. order.

It is so ordered.

Mark L. Piel:rykowski, J.

Arlene Singer, p.3.

Stephen A. Y'gr'bzough= J.CONCUR.

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Page 1

LeXjS NeX IS rI of 1 DOCLMFN'T

NORMA CABAN, PL,AINTtF.F-APPELLEE, VS. ALONZO RANSOME,DEFENDANT-APPELLANT.

CASE NO. 08 MA 36

COURT OF APPEALS OF OEIIO, SEVENTH APPELLATE DIST'RIC'T,MAHONING COUNTY

2009-CThio-1 D34; 2009 Ohio App. LEXIS91I9

March 4, 2009, Decided

PRIOR HISTORY: [**1]C'E{ARAC'TLIZ OF PROCEEDP,VC;S: Civil Appeal

from Common Pleas Court, Case No. 07CV3889,

DISPOSITIONt Reversed and Vacated.

CASE SUMMARY:

was not a threat of physical harm. The alternative elementof mental distress was not satisfied. `l'he gixlfriend did nottestify that the boyfriend's call to her, stating that, whenhe found her, "all bets are off," cailsed her to develop amental condition that involved sonte temporarysubstantial incapacity, as required by § 2903,211(D)("2),or that would normally require mental health services.

PROCEDURAL POSTURE: Appellant ex-boyfriendsought review of the judgment of the Mahoning CoUntyCommon Pleas C'ourt (Ohio), which granted a civilstalking protection order (CSPO) against him in favor ofappellee ex-girifriend.

OVERVIEW: After dating for #ourteen years, the partiestet-tninated their relationship. About frve months later, thegirlfriend filed a petition for a CSPt7. 'Fhe court held thatthe trial court improperly granted the CSPO as theelements of inenacing by stalking had not beendemonstrated by some competent, credible evidence. 't'heevidence did establish a pattern of conduct tulder R.C.2903.2I1(U)(1). FIowever, the evidence clid not show thatthe boyfriend caused the girlfriend to believe that hewould cause her physical harnrn. In her testimony, thegirlfriend did not state that 51ie feared for her safety butinstead testified that she feared that the boyfriend wouldconfront her and ask her again why she broke tip withhim. "I'hreatening to approach a person for conversation

OUTCOME: The court reversed the judgment of thetrial court, vacated the CSPO, and entered judgment forthe ex-boyfriend.

COUNSEL: Noi-ma Caban, Plaintiff-Appellee, Pro se,Youngstown, Ohio.

For Defendant-Appellant: Attorney James Getitile,Youngstown, Ohio.

JUDGES: T-lon. Joseph J. Vukovich, Hon. C`.heryl L.Waite, ldon. Mary DeGenaro. Waite, J., concurs.DeGenaro, J., concurs.

OPINION BY: Joseph J. Vukovich

OPINION

VUKOVICII, P.J.

2009-Ohio-1034, *; 2009 Ohio App. LEXIS 909, ** 1

[*PI j Defendant-appellant Alonzo Ransomeappeals the decision of the Mahonitlg County C'ommonPleas Court granting a civil stalking protection orderagainst him in favor of plaintiff-appe(lee Ncirma Caban.The issue is whether there was sonxe coinpetent, credibleevidence oii the elements of rnenacing by stalking, whichis a prerequisite for granting a civil stalking protectionorder. For the following reasons, there was aot somecompetent; credible evidence upon which the fact-finciercould deternline that appellant knowingly caused appelleeto believe that he would cause her physical harrn oralternatively that he knowingly caused appellee mentaldistress, as strrtutorily defiraed. For the following reasons,the judgn-ient oFthe trial court is reversed on grounds ofmanifest weight of the evidence and the civil stalkingprotection order [**2] is vacated.

S1:A 1 EMF:NT OI' TI-IE CASE

[*P2] Appellee dated appellant for fourteen years,and terminated the relationship at the end of May in2007. After receiving multiple telephone messages fromappellant over the summer, appellee filed a petition for acivil stalking protection order against him on October 1.7,2007. An ex parte order was issued, and then the fullhearing was hetd before a magistrate on November 5,2007, where appellant and appellee both testified. At thattime, the magistrate granted tixe petition fer a protectionorder with an expiration date of Novetnber 5, 2009.

[*P3] The magistrate found that appellantrepeatedly called and left rnessages at appellee's hott2eand on her cellular telephone, he came to her place ofemployment and he left a threatening message stating thatwhen he found her, "all bets are off." The magistrateeoncluded that the preponderance of the evidenceestablished that appellant knowingly engaged in a patternof conduct that "caused [appellee] to believe that [he] willcause physical harm or cause or has caused mentaldistress." The nlagistrate then prohibited appellant froincontacting and coming within fifty yards of appellee orentering appellee's property and [**3] place ofetnployment.

[*P4] Appellant filed timely objections to themagistrate's decision. On January 7, 2008, the trial courtoverruled the objections, adopted the magistrate'sdecision and gT-anted appellee's petit7on for a civilstalking protection order. Because the clerk did not servethe parties with the entry until February 5, 2008,appellant's March 4, 2008 notice of appeal was timely

fi led.

GENERAL LAW

Page 2

[*P5] In order to grant a petition for a civil stalkingprotection order, the trial court n7ust hold a full hearingand proceed as in a normal civil action. R.C.2903, 214(D)(3). Ivotably, the petition is not evidence tobe considered at that full hearing. Felton v. Felton (1997),79 Ohio : S't.3d 34, 42-43, 1997 Ohio 302, 679 ,VE.2r4 67?.`1'he trier of fact must determine whether thepreponderance of the evidence presented at the hearingestablishes that the defendant engaged in a violation ofR.C. 2903.?.11, whiebisthe menacing by stalking statute.See R.C. 2903.214(()(1). See, also, Felton, 79 Ohio St.3c1at 42 (holding that since court considering a protectionorder is to proceed as in a normal civil action and sincestatute is silent on standard of proof, preponderance ofevidence is the proper standard). The menacing by [**4]stalking statnte provides:

[*P61 "No person by engaging in a patt.-ern ofconduct shall knowingly cause another person to believethat the offender will cause physical harm to the otherperson or cause mental distress to the other person." R: C.2903. 21],(A) (1).

[*P7] Our standard of review for whether the

protection order should have been granted and thus

whether the elements of menacing by stalking were

established by the preponderance of the evidence entails a

manitest weight of the evidence r,eview.

Ahuharrztla-Sliman v. Sliman 161 Ohio App.3d 541, 2004Ohio 2836, P9-10, 831 1V.E.2d 453. See, also, .Feltoa, 79

Ohio St.3ct rzt 42-43 (where Court evaluated whether

there was sufficient credible evidence to support the

decision that elements of protection oi-der weresatistied).

If there is aquestion as to the restrictions imposed by the

court, however, we review the court's decision for an

abtise of discretion. See R.C. 2903. 214(L') (allowing court

to design order to ensure safety and protection). See, also,

Abuharncla-Slimrsn, 161 Ohio App.3d 541 at P9, 2005

C2hio 2836, 831 N.E. 453. Here, appellant's arguments

are all concerned with the granting of the petition, not its

contents or restrictions,

[*P8] Unlike criminal appeals, where we canreweigh the evidence, [**5] civil appeals require moredeference to the trial court and require affirmance ofthose judgments supported by some competent andcredible evidence. State v. Wilson, 113 Ohio S't.3d 382,

2009-Ohio-1034, *PS; 2009 OhioApp. I..EXI-S 909, **5

2007 Ohio 2202, P26, 865 11t.E.2tl 1264. Thus, civiljudgments supported by some competent and credibleevidence cannot be reversed on appeal as being contraryto the manifest weight of the evidence. Icl. at P24, citingC.E. YVIorris Co. v. Foley Corastr. Co.(1978), 54 Ohio.4t:2d 279, 280, 376 :V.E.ld 578. Thus, we must evaluatewhether there was some cornpetent, credible evidence oneach element of menacing by stalking.

[*P9] In reviewing a trial court's weigYting ofcompetiiig evidence and credibility determi,nations, weare guided by a presumption that the trial court's factualfindings are correct. Id. 'I'his is due in part to the fact thatthe trial court occupies the best position from which toview the witnesses and observe their demeanor, voiceinflection, gestures, eye movements, etc. Id. We camlotreverse a civil judginent tnerely because we hold adiffererit opinion on the weight of the evidence presentedto the trial court and the credibility of the witnesses. Id.

ASSIGIaME;N"I' OF ERROR

[*P 10] Appellant's sole assignmentof errorprovides:

[*P11] "THE COURT ERREI) [**6] INADOPTING THE REPORT ANDRECOMMENDATION OF THE Iv1AGISTRATE."

[*P]2] Appellant claims that after "a couple" effortsto contact appellee were rebuffed, he stopped attemptiiigto communicate with her, He urges that this was a typicalexample of a long-tetm relationship ending. He allegesthat there was no evidence to suppoi-t the elements ofmenacing by stalking. More specifically, he contendsthere was no patterii of activity, he did not knowinglycause appellee to believe that he would cause physicalharm, and there was no mental distress.

[*P13] Appellant's first argument concems patternof conduct, whieh is defined merely as two or moreactions or incidents closely related in time. RE,',2903.211(D)(1). The pattern can include niessages orinforination sent via computer or telephone. RC.2903.211(II)(:),(6); 2_913.01(Y).

[*P 14] At the November 2007 hearing, appelleecomplained that appellant had been calling hersince June2007, even tliough she told him in May that she did notwant to speak to him again. (Tr. 4-5). She said that shespent all. sunlmer deleting his messages on her work and

Page 3

home phones because he leaves more than the tenmessages that the voice mail system will hold. (Tr. 5).She explained that [**7] on September 9, 2007,appellant came to an open house she was holding as arealtor, and appellant acknowledged that he went to thisopen house to talk. (Tr. 14).

[*P15] Appellee testified that appellant's Octobermessages becam.e threatening. She testified that onemessage stated that if he did not hear from her bymidnight, then he woald come looking for her at work orat a meeting or at aii open house and that she would haveto talk to hini. (Tr. 7). Appellee played the latest Octobermessage for the cotirt. (Tr. 8). The court could rationallybelieve this testimony on the amount of calls.

[*P16] Furthermore, appellant adniitted that hecalled appellee repeatedly in July 2007 and conceded thathe also emailed her. (Tr. 11-12). Appellant also disclosedthat he called appellee's sister in Florida when she wenton vacation. (Tr. 13). Consequently, there is someconipetent, credible evidence regarding a pattern ofactivity. Thus, the court's decision on tliis element isvalid.

[*P 171 Next, appellant contends that there was noevidence that he caused appellee to believe that he willcause her plrysical harm. This ctement was apparentlyfound to exist because of appellant's persistence over thesummer in combisration [**8] with his final call, whichappellee characterized as threatening atid wli.ich the courtalso described as threatening because it relayed that "hewould find her -+-'all bets are off':" (Tr. 7-8). In that call,appellant gave appellee a deadline to contact him,advised that he would come looking for her at work, andexpressed confidence that she would talk to him this time.(T'r. 7). Besides this call, appellee had also explained thatappellant came to an open house she was working andthat she sat in her car to avoid talking to him. (Tr. 6). Shetestified merely that she told him "no more talking" andthat he left without responding. (Tr. 9-10).

j*P18j In a mere six pages of testimony given byappellee, she did not state that she feared for her safety.Instead, it seems as if what she feared was that appellantwould confront her again and ask her again why shebrolceup with him after a fourteen-year relationship. Theelernent of causing her to believe has subtectiverequirements. Labeling a call as threatening does notexpress a belief that the caller would cause physicalharm. That is, threatening to approach a person for

2009-Ohio-1034, *P1$; 2409Ohio App. LEXIS 909, **8

conversation is not a threat of physical harm. As such; wecannot ^fz-nd [**9] some competent, credible evidence tosupport a finding that appellant knowingly causedappellee to believe that he would cause her physicalharm.

[*P19] We turn to the question of wliether thealternative element of mental distress was satisfied. Toreview, the menacing by stalking statute states:

[*P20] "No person by engaging in a pattern ofconduct shall knowingly cause another person to believethat the offender will cause physical harn7 to the otherperson or cause mental distress to the other person." R.C.2903.211(ft)(1).

[*P21] Before proceeding to address what mental

distress means, we must answer a statutory interpretation

problem. Appellant's brief fluctuates between whether the

defendant must have actnally caused the victirn to suffer

niental distress or whether he need have only caused her

to believe he would cause her mental distress. See Apt.

Br. at 7 versus 8. The cliecked portion of the trial court's

form entry proceeds as if the mental distress alternative is

established by either causing mental distress or by

causing the petitioner to believe that he will cause mental

distress. See Order of Protection, page 2, first checked

box ("caused [appellez] to believe that [he] will cause

physical harm [**10] or cau.se or has caused mentaldistress") (emphasis added).

[*P22] Some courts have helcl that metiacing bystalking can be found even if the defendant only causedthe victim to believe that metital distress would becaused. See, e.g., hrwin v. Nlurra.v. 6th Dist. No.L-05-1113; 2006O•1?io 1633, P18; Dclvton v. Davis(1999), 136 Ohio App,3d 26, 32, 735 N.1'.2c1 939 (2dDist.).

[*P23] I-Iowever, this district and various otherdistricts proceed as if the test is whether mental distresswas in fact caused. See Darling v. Darling, 7th Dist. Nos.r76,IF.'6, 06JE7, 2007 Ohio 3151, P20 ("n3enacing bystalking involves either behavior that causes the victim tobelieve that he or she will be physically harnzed, orbehavior that causes mental distress to the victim"; Statev. Werfil, I1 th Dist. No. 2006 I-163, 2007 Ohio 5198,P26-27 (the test is whether defendant "knowingly actedin such a way that would cause a reasonable person tofeel threatened of physical harm and(or suffer mentaldistress"); Middletown v. Jones', 167 Ohio AI)p.3d 679,

Page 4

2006 Ohio 3465, P7, 8561b`.E.2d 1003 (12th Dist.); Smithv. iVunsch, 162 Ohio App.3d 21, 2005 Ohio 3498,P18-19, 832 N.B.2d 757 (4th Dist); State v. Tichon(1995), 102 Ohio ApP. 3d 758, 763, 658 ^'V.E.2d 16 (9thDist).

[*P24] We maintain this position andfiirther[**l l] note that by repeating "to the other person" afterboth physical harm and tnental. distress, rather thanmerely placing it at the end of the sentence, thelegislatureex-pressed that "to believe" does not modify"mental distress". As such, any mental distress mustltaveactually been caused.

[*P25] We can now address whether there wassome competent, credible evidence to show that appellantknowingly and actually caused any mental distress here.The metracing by stalking statute specifically deFinesmental distress as follows:

[*P26] "(a) Any mental illness or condition thatinvolves some temporary substantial incapacity; [or]

[*P27] (b) Any mental illness or condition thatwould normally require psychiatric treatment,psychological treatment, or other mental health services,whether or not any person requested or receivedpsychiatric treatment, psychological treatment, or othermental healtli services." R. t;. 2903.211(l)) (2).

[*P28] Analyzing the available facts under theproper law, we conclude that there was not somecompetent, credible evidence showing that the defendantactually and laiowingly caused mental distress. There isabsolutely no indication that appellee developed a mentalillnessunder R.E. 2903.211(D)(2)(a). [**12] Thus, weare left with the question of whether there was somecompetent, credible evidence that she developed a mentalcondition that involved some temporaiy substantialincapacity or that would normally require mentat healthservices. See R.C. 2903.211(D)(2)(a)-('b).

[*P29] We acknowledge that the fact-fmder canrely on its own experience and ktiowledge to determine ifmental distress was caused. Smith, 162 Ohio EIpp.3ct 21,2005 Ohio 3498 at P18: 832 N.I,', 2d 757. However,mental distress for purposes of inenacing by stalking isnot mere metital stress or annoyance.

[*P30] The nlagistrate heard evidence thatappellant, who was appellee's boyfriend of fourteen

2009-Ohio-1034, *P30; 2009 Ohio App. LEXIS 909, ** 12

years, kept leaving appeliant messages askiiig to talkabout why their long-term relationship suddenly ended.Appellant's final message seemed to be the final strawwhich caused appellee to report appellant. 'The trial courtfailed to preservethiscall for our review but did outlineits contents. As set forth above, the call gave appellee adeadline to contact him, opined that he would find herwherever she is, warned that "al[ bets are off" and seemedconfident that she would talk to him this time. Thequestion is whether that call (conibined with thepriorbehavior) actually caused [**93] appellee the kind of'mental distress that is required by the definition portionof the statute.

[*P31] Appellee did not testify that it did cause hersuch distress. Nor did she mention any stress reactionsthat could qualify as temporary substantial incapacity orthat would lead one to seek mentat health services.Rather, the testimony showed that appellee is sick ofappellant and that he is annoyingly obsessed with whyshe left him after all their years together and why sherefuses to speak to hini, "['he calls may constittztetelephoneharassment but do not by themselves establishmerltal distress was actually suffered.

[*P32] Nor did the open house encounter establishinental distress under the facts herein. Appellant did showup at her open house to which she responded by sitting inher car. See ad, at P20 (evidence of changed routine cancorroborate a finding of iner2tal distress). Howevar, heleft after she told him that she would not speak to him.Even if this is enougb to show mental stress, it is notenough to sliow mental distress as statutorily defined.

Page 5

[*P33] We also point out that the magistrate readthe petition into the record. (Tr. 4), Yet, asaforementioned in our general recital of the relevant[**14] law, the petition is not evidence and its contentscannot be considered by the court in granting a petition.See Felton, 79 ©hioSt. 3d at 42-42 (holding that pleadingis not evidence so answer to petition for protection ordercarinot be used by court).

[*P34] In conclusion, without any mention of oi'allusion to hermental state in the evidence presented tothe court, the fairly stringent test of niental distress hasnot been met imder the particular facts and circumstancesof this case. Considering the totality of these facts andcircumstances, the elements ofinenacing by stalking havenot been demonstrated by sonte competent, credibleevidence.

[*P35] For all of the foregoing reasons, we herebyreverse the granting of the civil stalking protectiou. orderon manifest weight of the evidence grounds. In the appealof a civil non-jur-y trial, two appellate judges can reverseanc[ remand one time on weight of the evidence groundsor the appellate conrt can enter the judgment that the trialcourt should have entered on that evidence. App.R 12(C).We choose to vacate the civil stalking protection orderand enter judgment for appellant.

Waite, J., concurs.

DeGenaro, J., concurs.

Page I

LexisNexis^

RACHEL N. SMITH,Ylaintiff-Appellee, vs. RONNY E. WLiNSCH,Defen dant-AppelIa n t.

Case No. 04CA14

COUR'T Ok`APPEAT,S OF O1110, FOURTH APPELLATE DISTRICT, IiOCKINGCOUNTY

162 Ohio App. 3d 21; 2005-Olaio-3498; 832 :V:L;.2d 757; 2005 OhiaApp. LL'X1;S 3246

June 28, 2005, Date Journalized

PRIOR HISTORY: CIV1L APPEAL FROMCOMMON PLEAS COU[2T.

DISPOSITION: JUDGviI3TvT AFFIRMED

CASE SUMMARY:

PROCEDEJRAt. POSTURE: Petitioner victim filed anaction requesting a civil stalking protection order (CSPO)to direct respondent former mayor to cease contacting,harassing, bothering, and armoying her and her Ixusband.TheHocking County Court of Common Pleas (Ohio)found that the former mayor had engaged in "inehacingby stalking" (Ohio Rev.C'ode Ann. § '.t103.214) andgranted the CSPO under Ohio Rev. Code Ann. §2903.211(0(1). The former mayor appea(ed.

victim testified that he had called her at home, followedher, and passed her driving to work in the znorning andgoing home in the afternoon. Finally, the victim'stestimony that she feared for her safety, coupled with theevidence that the mayor waited for her in the bushesoutside her place of employment, followed her aroundtown, and put himself in a position where he passed hergoing to and fro3n work was sufficient to establish that lieknowingly caused her "mental distress," pursuant to OhiuRev. CodelJnir; § 2903.217(I))(2).

OUTCOME: The judgmetit of the trial court wasaffirmed.

COUNSEL: FOR APPELLANT: Michael N. Oser.Columbus, Ohio.

OVERVCEW:The former mayor argt.led that the trial

court eired by issuing the CSPO. The appellate court held

that there was sufftcient evidence to support the trial

court's conclusion to issue a CSPO. The former mayor

admitted that after he left theinayor's office, he visited

the "city building" 15 to 20 times between Januaty and

!Vlay, which was sufficient to establish a pattern of

conduct under Ohio Rev. Code Ac2n. §2903.211(D)(1).

Moreover, oii one occasion, he hid in bushes and waited

for the victim to come outside after work, and at another

time, he cornered and blocked her from leaving a parking

lot so that he could engage her in convet•sation. Also, the

JUDGES: BY: Peter B. Abele, Presiding Judge.McFarland, J. &* Grey, J.: Concur in Judgment &Opinion.

* Judge Lawrence Grey, retired from the FourthAppellate District, sitting by assignment of theOlzio Supreme Court in the Fourth AppellateDistrict.

OPINIONBY; Peter P. Ahele

162 Ohio App. 3d 21, *; 2005-Ohio-3498, **;832 N.E.2d 757, ***; 2005 Ohio App. LEXIS 3246

OPINION

[*24] [***759] DECISION AND JUDGMENTENTRY

ABELE. P.J.

[**P l] This is an appeal from a I-locking C;ountyCommon Pleas Court civil stalking protection order("CSPO") directing Ronny E. Wuusch, respondent belowand appellant herein, to refrain from harassing, contactingor coming within 500 yards of Rachel Smith, petitionerbelow and appellee herein, and her husband Michael J.Smith.

[**P2] The following en•ors are assigned for ourreview:

FIRST ASSIGNMENT OF ERROR:

"The trial court erred when it grantedpetitioner-appellee's request for a stalkingcivil protection order."

SECOND ASSIGNMENT OFERROR:

"The trial court abused its disct-etionin granting petitioner-appellee's recluestfor a stalking civil protection orderbecause the evidence failed to suppoi-f afinding that Mr. Wunsch causedpetitioner-appellee mental distress."

[**P3] Appellant served as C'ircleville Mayor from2000 to 2003. In 2001, appellee worked as a typist/clerkin the Circleville city Services Departnaent, During theiremployment for the city, they had daily eontact thatallegedly involved appellant touching appellee's shoulder,whispering in her ear, and making her feeluucomfortable.

[**P4] Appellant le#t office in December 2003, buthe and appellee had contact for several months thereafter.On May 28, 2004, appellee comtnenced the instant actionand alleged that appellant persistently harassed her by (1)visiting her at work; (2) driving past her going to/fromwork, (3) sending e-niails; and (4) making phone calls.Appellee requested a (CSPO) to direct appellant to ceasecontacting, harassing, bothering, and at-moying her andher husband.

Page 2

[**P5] At the July 23, 2004 hearitag, appelleet-elated how appellant continued to come see tier at workafter he left office. She fur-thzr recounted that appellanthad visited her office on numerous occasions and askedher to be his friend, that he had managed to drive by herin the morning on her way to work and then again oci herway home i that he had waited in the afternoon for heroutside her place of employment, and that he hadfollowed her around town. In addition, appelleerecounted two specific instances when this tinwantedattention and contact [***760] caused her particularconcern: (1) when slle spotted appellant hiding in thebushes outside her office waiting for her to leave workand (2) when [*25] appellant followed her to a DairyQueen in Circieville and blocked her car from leavingwhile he attempted to talk to her.

I Appellee and her husband live in I-IockingCounty. `Thus, it takes considerably more effort topass her while she drives to and from work than ifshe lived in C_'ircleville:

[**P6J Appellee contacted the Circleville PoliceDepartment about these problenrs. Apparently, the policewanted more evideuce before they took action.Nevertheless, Circleville Police C'tlief Wayne Graytestified that lie warned appellant to stay away fromappellee. Appellant did not heed that warning. CirclevilleHuman Resources Director Teresa Cramer testiCed thatshe told appellant to stop coining around appellee but thathe did not listen to her.

[**P7] Appellant testified that he continued to visitthe city administi-ation building after he left officebecause he was still interested in the operation of citygovemment--both as a concerned citizen and because hewas interested in running for county commissioner.Appellant also explained that he attempted to conversewith appellee on occasion because he was confuseci as towhy she "wouldn't speak to [him] or acknowledge [him]"anymore and because he wanted to extend "an offer offriendship" between he and his wife and appellee and her$usband. I-le explained that the Smiths seemed like a"nice young couple" who did not have a lot of otherpeople around "to help them and support theni."

[**P8] On July 28, 2004 the trial court issuedfindings of fact and conelusions of law. Tlae court foundthat in light of the many warnings that: appellant hadreceived to cease contact with appellee, and consideringappellant's continued insistence on contacting appellee

162 Ohio App, 3d 21, *25; 2005-Ohio-3498, **M832 N.E.2d 757, ***7G0; 2005 Ohio App. LEXIS 3246

despite those warnings, appellant knew he was causingher niental distress. The court found that appellantengaged in menacing by stalking and stated that a"separate order will be filed herewith" to affordprotection to appellee. The court issued its judgment thesame day and ordered appellant to, inter alia, stopharassing, annoy ing, or contacting appellee and laerliusband and to stay five hundred (500) yards awav fromthem. This appeal followed. 2

2 Appellant's notice of appeal incorrectly

referencesthe trial court's Endings of fact and

conclusions of law. Though denoted as a

"judgment," that entry is not a final, appealable

order because it did not enter judgmentfor one

party or another, but sitnply called for the filing of

a separate order that would in fact enter such a

judgment. See Prod Credit .4ssn. v. 1{edges

(1993), 87 Ohio App. 3d 207, 210, 621 N.1:.2d

1360, at,jn. 2; also see Minix v. C'ollier (Jul. 16,

19991, Scioto App. No. 98C42619, 1999 Ohio

App. LEXIS 3405. In the interests of justice,

however, we will treat appellant's notice of appeal

as referencing the CSPO which is, in fact, the

final, appealable order in this case.

[**P9] We jointly consider the two assignments oferror, as they contain, in e.ssence, the same argument thatthe trial court erred ingranting the CSPO.

[**P10] Our analysis begins froni the premise that

the decision to grant a CSPO is left to a trial court's sound

discretion and will not be reversed on appeal absent an

abuse of that discretion. See Gccthrie v. Long, Franklin

App. No. 04Ap-913, [*26] 2005 Ohio 1541, at P9; Vcrn

Vorce v. Van 1/or-ce, Auglaize fdpp. No. 2-04-11, 2004

Ohio 5646, at 1'15; Bucksbarem v. rllitchell, Kic.hlanct

App. No. 2003-CA-0070, 2(104 Ohit) 2233, at P14. We

nqte that an abrrseof discretion is described as more than

an error of law ot- judgment; rather, it implies that a trial

court's attitude was imreasonable, arbitrary, or

unconscionable. [***761] See Landis v. Grange Mut.

Ins. Co. (1998), 82 Ohio St.3d 339, 342, 1998 Ohio 387,

695 iV.F,'.2d 1140; 11alone v. Courtyard bv Marriott L.P.

(1996). 74 Ohio St.3d 440, 448, 1996 Ohio 311, 659

N. E.2d 1242; State ex rel. Sololnon v. Polic•e & Firernen sDisabllitv & Pension Fund F3cl qf Trustees (1995), 72

Ohio St.3d 62, 64, 1995 Ohio 172, 647 N.E.2d 486. When

reviewing a qnatter under the abuse of discretion standard,

appellate courts must not substitute their jud&"ent for

Page 3

that of the trial court. See State ei: rel. Dtincan v.F;hippetva Trip, 7`r•ztstees (1995), 73 Ohio St.3d 7?8; 732,1995 Ohio 272, 654 N.E.2d 1254; In re Jcane Doe 1(1991), 57 Ohio St.3d 135, 137-138, 566 N.1;:2;;i 1181;BerTc v. Mcrtthews (1990), 53 Ohio St.3d 161, 169. 559IV.E.zd 1301. To establish an abuse of discretion, theresult must be so palpably and grossly violative of fact orlogic that it evidences not the exercise of will but theperversit.y of wvill, not the exercise of judgment but thedefiance of judgment, not the exercise of reason, butinstead passion or bias. Vazagqit v. ClevelandClinicFozrnd., 98 Ohio St.3d 485, 787 rV E.2d 631, 2003 C1hio2181, P13; Nakojf v. Fairview Gen: Hosp. (1996), 75Ohio St:3cl 254, 256, 1996 Ohio 159, 662 _N.E.2d 1.

[**Pl l] A petitioner is entitled to a CSPO if shealleges and proves that a respondent harassed her in sucha way as to violate Ohio's "menacing by stalking" statute.See R.C. 2903.214([:)(1). This statute prohibits engagingin a pattern of conduct that knowingly causes mentaldistress to another person. R. C. 2903.211(A) (1). A"pattern of conduct" meanstwo or more actions closelyrelated in time, and "meiital distress" means any mentalillness or condition that involves "some temporarysubstantial incapacity" or any rnental illness or conditionthat tiormally requires "psychiatric treatment,psychological treatment, or other mental heatth services,whether or not any person requestecl or receivedpsychiatric treatment, psycliological treatment, or othermcntal health sei-vices," R. C. 2903.211(1))(1) and (2)(a)and (h).

[**P12] Appellant's first argument is that the trialcourt erre<l by issuing the C.SPO because insufficientevideiicc exists to show that he engaged in a pattern ofconduct that lcnowingly caused appellee mental distress.We disagree. A pattern of conduct, requires only two ormore actions closely related in tinie. R.C.2903.21 Z(D)(1). Appellant admitted that after he left themayor's office, he visited the "city builduig" 15 to 20times between January and May 2004. This evidence issuffieient to establish a pattern of conduct. Thoughappellanl: claimed that he had official reasons to be in thebuilding during those times, the trial [*27] court inaywell havedisbeiieved him and colcluded that his purposewas to encounter appellee for non-official reasons.

[**P13] Even assuming that the court believed thatappellant liacl visited the city building for official reasons,two other significant contacts occurred between appellant

162 Ohio App. 3d 21, *27; 2405-Ohio-349$, **P 13;8^72 N.E.2d 757, ***761; 2005 Ohio App.I.EX1S 3246

and appellee that constitute a pattern of conduct: (1)when appellaiit hid in bushes and waited for appellee tocome outside after work and (2) appellant's cornering andblockiitg appellee fiom leaving Daiiy Queen so that hecould engage her in conversation. Wliile appellant hadinnocent explanations for these incidents, the trial courtapparently did not believe his version of the events.

[**P14] We further note that additional evidencecould also have factored into the trial coui-t'sdetermination. Appellee testified that appellant calied herat home, followed, her and passed her while she drove towork in the morning and went home in the afternoon.Although the testimony was somewhat unce-tain as to theprecise dates, this evidence is sufficient to [***762]constitute a pattern of conduct for pui-poses of R.C.2903.211(1?)(1), j

3 In cietennining what constitutes a"pattern of

conduct" for putposes of R.C. 2903.211(L))(I);

courts must take eveiy action into consideration"even if some of the person's actions may not, in

isolation, seeni particularly threatening." Guthriev. Long, F'rafaklin App. No. 04AP-913, 2005 Oltio

1541, at P12; 1.fillel° v. Francisco, Lake App. No.

2002-L-(J97, 2003 Ohio 1978, at P11

[**P15] Appellant next argues that the trial courtrelied on evidence of acts outside the tinie frame of thealleged stalking. In particular, appellantobjects to thetrial court's finding of fact that he touehed appellee'sslioulder or whispereci in her ear during the time that theyworked together.

[**P16] Appellant is coi-rect insofar as he assei-tsthat appellee only claims that appellant stalked her afterhe ceased serving as mayor. He is also correct that thetrial court cited instances of conciuct that transpired whilehe still held office and that the two had, presumably, anamicallle working relationship. We are not persuaded,however, that the trial court relied on that conduet.Rather-, we believe the court referenced those acts assupplemental information to lay the factual groundworkfor this case and not evidence on whieh the court laterrelied in rendering its decision. Indeed, a review of thetrial eourt's factual tindings inakes it patently clear thecourt relied on events that occurred atfer appellant leftoffice (particularly his hidijig in bushes waiting forappellee to leave work, the incident at Dairy Queen, andthe fact that appellant ignored persistent vvatnings to stayaway from appellee) in deciding that a C'SPO was

warranted in this case, 4

Page 4

4 The trial court macle no fewer thati 15 findingsof fact in its July 28, 2004 judgment. Its findingthat appellant touched appellee's shoulder andwhispered in her car was made at factual findingnumber four. Appellant cites to other findings thatthe court made about the time he was in office assvell. Again, however, we do not believe that thisformed any basis for the court's decision.

[*28] [**P17] Appellant's next argunient is thatiiisufficient evidence exists to establish that any of hisactions caused appellee n-aental distress. Again, wedisagree.

[**P18] "Mental distress" means any mentalcoiidition that involves some temporary, substantialincapacity or amental aondition that norrnally requirestreatment or services whether or not they are recluested.R.C. 2903.211(D)(2). The trier of factdoes not needexpert testimony on this issue, but may rely on itsknowledge and experience in determining whether mentaldistress has been caused. Noah v. BrilZhart. Il'ayrae App.No. 02CA50, 2003 Ohio 2421, at P16; State v. ScottSunarrrit App. No. 20834, 2002 Ohio 3199, at P14.

[**P19] In the present case, the trial court foundthat the stress brought on by appellant's repeated stalkingand unwanted attention would normally require mentalhealth services andfor psychological treatment. Webelieve that ample evidence exists in the record tosnpport the trial court's flnding: Appellee testified thatshe feared for her safety. Chief Gray testified thatappellee was "pretty shook up" and "upset" when shereported to police appellant's repeated effortsto makecontact with her. Valerie Sanzone, an administrativeassistant for the city of Cireleville, was on a cell photaewith appellee during the incident at Dairy Queen andrelated that appellee was "hysterical" when appellantblocked her car and tried to make contact with lier. Thistestimony, coupled with the evidence that appellant[***763] waited for appellee in the bushes outside herplace of employment, followed her arourid town, and puthiinself in a position. where he passed her going to andfrom work is sufficient for a reasonable trier of fact toconclude that appellant knowingly caused appelleemental distress.

[**P20] We note that our conclusion on. this point isbuttressed by another factor. Appellee explained that

162 Ohio App. 3d 21, *28; 2005-Ohio-3498, **P20;832 N.E.2d7 57, ***763; 2005 Ohio App. LEXIS 3246

appellant's condttct wasso"excruciating" that it was a

"part of the reason [she] quit [her] joh." Evidence of

changed routine corroborates a finding of mental distress.

See Noah, supra at PI6; Scott, szpra at P14. The fact

that appellant's unwanted attention influenced appellee to

terminate her job with the city ofCircleville indicates that

she was, indeed, under mental distress and thus supports

the trial court's concIusion.

[**P21] Finally, appellant arguestl:at he reasonablyexplained the instances of stalking in hisowtl testimony.He asserts that:(1) his continued appearance in the citybuilding was to obtain infortnation for another nzn for[*29] oftice: (2) his presence in the bushes waiting forappellee one night after work was because of aprearranged meeting to which she coisented and at whichhe was going to extend an offer of friendship to her andher husband; and (3) the Dairy Queen incident essentiallydid not happen and that he passed appellee's car just asshe exited the park.ing lot.

[**P22] We acknowledge that appellant offered anexplanation for virtually every alleged instance ofstalking. It is up to the trial court, however, to determine

what weight and credibility to afford the appellant's

version of the events and the appellee's version of theevents. See Cole v. Complete ,=]uto TYansit, Inc. (1997),

179 Ohio App:3d 771, 777-778, 696 N.E.2d 289; G'l'1;

Teleplzotze Operations v. J & 11 Reinfof•cing & Structurallirec:tors, Itac., Scioto App. No. r?I C,42808, 2002 Ohio

2553, at PIO; Reed v. Stnilh (Mar. 14, 2001), Pike 4pp.

No. OOCA650, 2001 Ohio App. hF,XIS' 1214. Appellatecourts typically defer to trial courts on issues of weiglit

and credibility because, as the trier offa.ct, trial court is

better able than appellate coui-t to view the witnesses and

to observe their demeanor, gestures, and voice inflections

and then to use those observations in weighing

credibility. See Mvers v. GaF•son (1943), 66 OhioSt.3d

610, 615, 1993 Ohio 9, 514 N.G.2c1 742; Seasons Coal

Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 10 Ohio

B. 408, 461 N.E.2d 1273. d4oreover, a trier of fact is free

to believe all, part or none of the testimony of any

witness who appears before it. Rogers v. Hill (19913), 124

Ohio App.3d 468, 470, 706IV:E.2d 438: Stewart v. B.F*,

Goodrich Co. (1993), 89 Ohio App:3d 35, 42, 623 N.F,. 2d

591; also see State v. Nichols (1993), 85 Ohio App.3d 65,76, 619 N:E.Zd 80; State v: ffarri.ston (1989), 63 Ohio

App.3d 5<Y, 63, 577 ,VI-,'..?cl 1144. In the case sub judice,

the trial court opted to accord more weight to appellee's

version of the events thati appellant's version. This is well

Page 5

within the trier of fact's pzovince, and we find no error inthat regard. 5

5 Indeed, after appellant explained that he hid inthe bushes to meet appellee aiid to extend an offerof friendship to her and her husband, the trialcourt even remarked that such course of actionseemed odd. Appellant noted that people had toldhim the same thing before.

[**P23] In sununary, we find that sufficientevidence was adduced during the trial court proceedingsto support the court's conclusion to issue a CSPO. 'I'hus,we find no abuse of discretion in its decision.Accordittgly. we conclude that appellant's twoassignments of error are without merit [***764] and arehereby overruled, and we hereby affirm the trial cottrt'sjudgment:

Judgment affirmed.

JUI)GYIE;NT ENT12Y

It is ordered that the judgment he affirmed and thatappellee recover of appellant costs herein taxed.

The Cout-t finds there were reasonable grounds forthis appeal.

It is ordered that a special mandate issue out of thisCourt directing the I-locking County Common PleasCourt to catry this judgrnent into execution.

A certified copy of this entry shall constitute thatmandate pursuant to Rule 27 q fthe IZules o/flppellateProcedure. Exceptions.

McFarland, and Grey, J.J., concur.

[N30] Lawrence Grey, J. retired from the Court ofFourth Appeals, Fourth District, sitting by assignment.

For the Court

BY: Peter B. Abele

Presiding Judge

NOTICE TO COUNSEL

Pursuant to Local Rale No. 14, this documentconstitutes a final judgment entry and the time period forfurther appeal commences from the date of filing with the

162 Qhio App. 3d 21, *3(); 2005-Ohio-3498, **P23;832 N.E.2d 757, ***764; 2005 Ohio App. LEXIS 3246

Page 6

clerk.

Page l

Lex i sNex i s"

STATE OF OHIO, Appellee v. MECHAEI, A. PAYNE, Appellant

C.A. No. 24081

COUR1' OF APPEALS OF OHIO, NINTH JUDICIAL DISTRICT, SUMMITCOUNTY

178 Ohio App. 3d 617, 2008 Ohio 5447; 899 A:E.2tt 1011; 2008 Ohio App. LE_YIS 4615

October 22, 2008, Decided

SUSSEQUENT HISTORY: Writ of habeas corpusdisinissed, Dismissed without prejudice by, CertiCcate ofappealability denied, Reyuest granted Pavrze v. Hall,2009 U.S. Dist. LEXIS 55022 (N.D. Ohio, ATur. 11, 2009)

PRIOR HISTORY:

APPEAL FROM JUDG.vIEN1 ENTERED IN THEC'OURT OF COMMON PLEAS COUN'lY OI'SUMMIT, OHIO. CASE No. CR 07 09 3188.

DISPOSITION: Judgment affirmed.

past the vietim's home more than once. Testiniony frotndefendant's former girlfriend was properly adnlitted toshow defendant's history of violence and his priorconvietion, both of which were relevant to increase thedegree of the offense. 'i'he evidence was not unfairlyprejudicial or cuniulative under Evid. R. 403(B).Defendant's counset was not ineffective in failing toobject to evidence of defendant s prior bad acts, as therewas no prejudice where sufficient other evidencesupported the conviction. The initials of the juiyforeperson on the indictment were sufficient to satisfyR.C. 2939.20.

CASE SUMMARY:

PROCEDURAL POSTURE: Defetidant appealed ajudgment from the Summit County Court of CommonPleas (Oltio), which convicted him of menacing bystalking, in violation of R. C. 2903.217(A). The trial courtimposed a term of imprisomnertt on defendant.

OVERVIEW: Defendant allegedly drove his car througha victim's neighborhood in a manner that was knowinglyintended to cause her inental distress. He was chargedwith menacing by stalking and he entered a not guiltyplea. After counsel was appoi.nted for defendant due tohis indigency and a jury trial was held, defenciant wasconvicted and sentenced. On appeal, the court held thatthe evidence was sufficient to support the conviction, asthe State provided sufficient proof of the victim's mentaldistress and defendant's "pattern of conduct" in driving

OUTCOME: The court affirmed the judgment of thetrial court.

COUNSEL: SHERRI BEVAN WALSH, ProsecutingAttorney, and GRETA L. JOI-INSON; AssistantProsecuting Attorney, for Appellant.

THOMAS M. PARKER, Attorney at Law, for Appellee.

JUDGES: CARLA MOORE, Presiding Judge. SLABY,J., WHITMORE, J., CONCUR.

OPINION BY: CARLA MOORE

OPINION

178 Ohio App. 3d 617, '; 2008 Ohio 5447. *";899 N.E.2d 1011, ***; 2008 Ohio App. LEX.TS 4615

DECISION ANI) JOLTRNAL ENTRY

[*620] [***1013] MOORE, Presiding Judge.

[**P1] Appellant, Michael Payne, appeals hisconviction from theSumznit County Court of ConanxonPleas. This Court affirms.

I.

[**P2] Payne was indicted on October 1, 2007 onone count of menacing by stalking in violation of R. C.2903.211(A), a fourth-degree felony. 'The indictmentalleged that on September 18, 2007, Payne drove his carthrough the neighborhood of the victim, Alesha Austin,in a manner knowingly intended to cause her rnentaldistress. Payne pled not guilty.

[**P3] On October 10, 2007, Payne filed anaffidavit of indigency, seeking appointed counsel. OnOctober 22, 2007, the trial court appointed defensecounsel for Payne. On January 7, 2008, followingdiscovery and a pretrial hearing, t:hecaseproceeded tojuiy trial. Payne was convicted on January 9, 2008 andlater sentenced to 18 months of inc;arceration.

[**P4] Payne filed a notice of appeal to this Courton February 14, 2008. He raises four assignments of errorfor our review.

II.

ASSIGNMENT nF ERROR I

"THE JURY VERDIC'I' UNDERWIIIC'li Iti1ICHAEL PAYNE WASCONVICTED OF MENACING BYSTALKING WAS BASEI) ONINSliF'FICIEN'I' EVIDENC:E[.]"

[**P5] In his first assignment of error, Paynecontends that hisconviction was based on insufffcientevidence as a matter of law. We disagi-ee.

[**P6] When considering a challenge based on thesufficiency of the evidence, this Court must determinewhether the prosecution has met its burden of pr-oduction.State v. Thornpkiris (1997), 78 Ohio St.3d 380, 390, 1997Ohio 52, 678 v:E.2d 541 (Cook, J., coricur-ring): Indetennining wliether the evidence was sufticient tosustain aconviction, acourt must view that evidence in a

ligli.t most favorable to the prosecution:

"An appellate court's function whenreviewing the sufficiency of the evidenceto support a criminal conviction is toexamine the evidence admitted at trial todetermine whether such evidence, ifbelieved, would convince the averagemindofthe defendant's guilt beyond areasonable doubt. The relevant inquiry iswhether, after viewing the evidence in alight most favorable to the prosecution,any rational trier of fact cotild have foundthe essential elements of the [*621] crimeproven beyond a reasonable doubt." Statev. Jenks (1991), 61 Ohio S't.3cl 259, 574N.P,.2d 492, paragraph two of the syllabus.

Page 2

Payne was convicted under R.C. 2903.21.1, whichprovides in part:

"(A)(1) No person by engaging in apattern of conduct shall knowingly cause<tnother persoti to believe that the offenderwill cause physical harm to the otherperson or cause mental distress to theotherperson."

[**P7] Payne challenges the sufficiency of theevidence leading to his conviction with respect to twoelements of the offense: the victim's mental distress or,alternat7vely, the victim's belief that the offender wouldcausephysical harm to the victim; and the existence of a"pattern of conduct."

[***1014] [**P8] The Ohio Revised Code defines"inentai distress" as any of the following:

"(a) Aiy niental illfress orcondition thatinvolves some ternporary substantialincapacity;

"(b) Any mental ilhiess or conditionthat would normally require psychiatrictreatment, psychological treatment, orothei- mental health services, wliether ornot any person requested or receivedpsychiatric treatment, psychologicaltreatment, or other mental health services."R.C. 2903. 211(D)(2)(cr), (b).

178 ©hio App. 3d 617, *621; 2008Ohio 5447, **P8,899 N.E.2d 1011, ***1014; 2008 Ohio App. LEXIS 4615

Austin testified that "[she] was afraid to leave" becausePayne was driving down her street, explaining that "Ididn't know what he was going to do *** I didn't knowwhy he was riding past niy house." She later testiEed thatshe was terrified for approximately six hours. The officerwho arrived at the scene following a call placed byMyron Austin, the victim's father, described herdenieanor as "intiinidated, nervous, very timid, likesomething was wrong." I-Ie also noted that "[s]he seetnedkind offearful.°

[**P9] Austin's inability to leave her house due toher fear of Payne is sufficietit to find that she sufferedsome "temporaty substantial incapacity" due to thcmental distress caused by Payne's conduct. "Substantialincapacity does not rnean that the victim must behospitaJized, or totally unable to care for herself.Incapaci.ryissubstantial if it has a significant impactupon the victitii s daily life." State v. Horsley, 10th Dist.No. 05AP-350, 2006 Ohio 1208, at P48. It issufficientthat Austin was so fearful as to be unable to leave herhome for the approxitnately six and one-half hours Paynecontuiued to drive past. I`his incident, albeit brief, made asignificant impact on Austin's daily activities.

[**P10] Evidence may also be considered in lightof the recent history bettiveen the victim and thedefendant. State v. Secession, 9th Dist. No. 23958, 2008Ohio 2531, at P9. Austin testified that her relationshipwith Payne was "a rocky one" and that he was "abusivemeritally and physically," describing the tiine diiringwhich they were dating as "very, very stressful." Austinalso testified that Payne had been previously convicted ofdomestic violence against [*622] her, from which shereceived an iniury to her right eye, and that Payne's pastactions had made her afraid of him. She recounted anincident in which Payne followed her while she wasriding in a cab, protnpting the cab driver to stop a policectuiser. Considering such evidence in the light ni.ostfavorable to the State, Austin had ample reason to fearthat Payne would cause her physical injury. We thereforeconclude that the evidence was sufficient for a rationaljuror to tind, beyond a reasonable doubt, that Paynecaused rnental distress to Austin.

[* *I'I 1] Payne also contends that liis actions did notconstitute a"pattern of conduct," claiming that heengaged in only a single act that day--drivingthroughAleslia Austin's neighborhood. T-he statute defines

Page 3

"pattern of conduct," in relevant part, as "two or moreactions or incicients closely related in time[.]" R.C.2903.2110)(1), However, we considereaeh of Payne'sacts of driving past Austin's home a separate "action" or"ittcident" under the statute. At least two of the State'switnesses saw Payne drive past Austin's home multipletimes. Barbara Walker testified that "[Payne] passed byhere at least twice." Also, Myron Austin testified that he"personally saw him" dt-ive by "[a]t least three or four"times.

[**P12] To deteimine whether two or more

incidents were "closely related in time," the incidents in

question should be resolved by the trier of fact

"'considering the evidence in the context of all the

circumstances [***1015] of the case."' Micfdletown v.

Jones (2006), 167 Ohio App.3d 679, 2006 Ohio 3465, atP10,8j6 iV.E.2d 1003, cllroting State v. Honeycutt, 2d

Dist. No. 19094; 2002 Ohio 3490, at P26. Walker

testified that Payne began driving past Austin's house

aroujad 2;45 p.m,, shortly before Austin and her father

arrived home, Alesha Austin testified that Payne

continued to drive past Austin's lzome until around 9:00

p.m., when the police arrived. The relatively short time

between each of the incidents, taken in the context of

Austin's prior relationship with Payne and the belief that

he may have intended to cause her physical harm, renders

them "closely related in tirne." This constitutes a°pattern

of conduct" sufficient Forthejury to find Payne guilty of

violating the statute. Accordirigly, Payne's fIr-st

assignment of error is overruled.

ASSIGNd1ENT QF ERROR 11

"TIIE TRIAL COURT ERRED BYIMPROPERLY AlliVI1T°TING CERTAINEVIDENCE OF OTHER ACTSA"!'TRIBtiTEI7 TO MICHAELPAYNE[.]"

[**P13] In his second assignment of error, Payneargues that the trial court improper(y admitted testimonyfrom his former girlfriend, Sharon Kaiser, regarding hishistory of violence during and after their relationship. Wedisagree.

[**P14] We review the admission of Kaiser'stestimony under an abuse of- discretion standard. 'I'heterm "abuse of discretion" connotes more than an error[*623] of law or jtrdgment; it implies that the court's

178 Ohio App. 3d 617, *623; 2008 Ohio 5447, **P 14;899 N.E.2d 1011, ***1015; 2008 Ohio App. LEXIS 4615

attitude is tmreasonabie, arbitrary, or unconscionable.13lakernorev. &laketnoye (1983), 5 Ohio St:3d 217, 219, 5

O{iio B. 481, 450 N.E.2d 1140. Trial courts have broad

discretion over whether to admit or exclude relevant,

admissible evidence as unduly cumlilative or prejudicial.F,vid.R. 403(B); see, also, State v. Davis, 116Clhio St.3d

404; 2008 Ohio 2, at P172, 880 N:E.ld 31, quoting State

v. Sage (1987), 31 Ohio St.3d 173, 31 Ohio B. 375, 510

N.E.2d 343, paragraph two of the syllabus. Payne'scounsel objected to questions as to why Kaiser's

relationship with Payne was "[h]orrible," Kaiser's

testimotly that Payne entered her home witllout her

petxnission, and her state of mind °when that was going

on," as well as to Kaiser being allowed to read from a

1999 complaint she had filed against Payne. Menacing by

stalking, normally a first-degree misdemeanor, is afourth-degree felony if a jury finds that any of eightcircumstances exist. R.C. 2903.21](B)(2). One of the

circunistances is where theoffcndei• has a history of

violent acts toward the victim or "any otherperson[:]"

R.C. 2903.211(B)(2)(e). Another exists where the

offender ha;s a prior menacing by stalking conviction.

R.C. 29113.211(B)(2)(a). 1n this case, the State offeredKaiser's testimony both to show Payne's history of

violence in their relationship, as well as to prove Payne's

prior menacing by stalking conviction.

[**P15] Payne concedes that Kaiser's testirnonywas admitted for a proper purpose, as an alternative toadmission as pt•oof of motive pursuant to R.C. 2945.59.Nevertheless, hecontends that in light of the otherevidence presented, under Evid.R. 403; Kaiser'stestimony was unduly curriutative and prejudicial.Ifowever, neither R.C. 2903.211 nor Evicl.R. 4E13(B)litnits the State to only one method of Proof. Payne'sfelony conviction could have been based on any of fourfactors, iuicluding his history of violence toward Kaiser orAustin, or either of his prior convictions for domesticviolenee or menacing by stalking. Conversely, they could11ave chosen to discount evidence of any or all of theother factors as of little or no weight. Thus, the trial courtdid not allow a "needless presentation of cutnulativeevidence."

[***1t;16] [**P]6] Neither do we find theadmission of Kaiser's testimony to be unfairly prejudicialto Payne. Although relevant, evidence rnay beinadnzissible if its probative value is substantiallyoutweighed by the danger of unfair prejudice. Evid.R,403(^'c). However, the decision of whether to exclude

Page 4

evidence under 403(A) lies with the sound discretion of

fhetrial court. Sage, 31 Ohio St.3d at paragraph two qf*

the syllabus. Kaiser's testimony was highl_y probative of

two of the eight circumstances in which Payne's offense

could be enhanced from a misdelneanor to a felony. We

are unconvinced that in light of this probative value, the

trial court was "unreasonable; arbitrary, or

unconscionable" in admitting Kaiser's testimony.

Accordingly, Payne's second assigtiment of error is

ovemiled.

[*624] ASSIGNMENT OF ERROR III

":V1TCI IAEL PAYNE RECEIVEDINEFFEC.'I'I4E ASSISTANCE OFCOUNSEL WHEN I-IIS COUNSEL DIDNO"I' O13JECT TO ALL 'OTHER ACTS'EVIDENCE OFFERI;D BY TI-IEi'ROSECII'I'ION."

[**P17] In his third assignment of error, Payneclaims that his trial counsel was ineffective in failing toobject to the admission of State's Exhibits 3 and 4 andKaiser's testimony as to Payne's prior bad acts. We do notagree.

[**P18] In considering a defendant's claim ofineffective assistance of counsel, this Court employs atwo--step process. Strickland v. Washinglon (1984), 466U.S. 668, 669, 104 S. Ct. 205Z; 80 L. Ed. 2d 674. First,we tnust determine whether trial counsel engaged in a"'substantial violation of any *** essential duties to hisclient."' State v. Br-adley (1989), 42 Ohio St. 3d 136, 141,538 N.E.2d 373;quoting State v. Lvtle (I976), 48 OhioSt.2d 391, 396, 358 rVF,.2d623, vacated in part on othergrounds. Second, we must deter-mine if the trial counsel'sineffectiveness resulted in prejitdice to the defendant.Braclley, 42 Ohio St.3d at 141-142, quoting kvtle, 48Ohio St.2d at 396-397.

[**P19] "An appellate court may analyze theprejudice prong of the Strickland test alone if suchanalysis will dispose of a claim of ineffective assistanceof counsel on the ground that the defendant did not suffersufficient prejudice." State v. Itordeleski, 9th Dist. No.(1.2CA(308046, 2003 Ohio 641, at P37, citing State v. Loza(1994), 71 Ohio St.3d 61, 83, 1994 Ohio 409, 641 N.F,'_2d1082, overruled on other grounds. A defendant maydemonstrate prejudice in cases where there is areasonable probability that the trial result would have

178 Ohio App. 3d 617, *624: 2008 Ohio 5447, **P19;899 N.E.2d 1011, ***1016; 2008 Ohio App. LEXIS 4615

been different but for the alleged ,deficiencies of counsel.Bradley, 42 Ohio .Si 3r1136 538N.E. 2d 373, at paragrapbthree of the syllabus. To make a suff eientshowing ofprejudice, a defendant must demonstrate that "'counsel'serrors were so serious as to deprive the defendant of afairtrial *** whose result is reliable.'" State v. Colon. 9thlaist. Iv'o. 20949, 2002 Ohio 3985, at P48, quotingStric•kiand, 466 L'.S. at 687.

[**P20] We fail to see how exclusion of SharonKaiser's testimony, along with the State's Exhibits 3 and4, would have clianged the outcome for Payne. Aspreviously noted, even had the trial court excluded Kaiserfrom testifying, there existed sufficient evidence to findPayne n_uilty of each of the elements of the crinie beyonda reasonable doubt and subject him to the enhancementprovision in R.C. 2903.211(&)(2). fIe also would haveremained subject toR.C. 2903.217(B)(2)(e) as anoffender w.ith a"liisrory of violence toward the victim or*** of czther violent acts toward the victim," as AleshaAustin's testimony macle clear. f'ayiie has faitedto[***7 017] demonstrate a reasonable probability that theotttcomeof his trial would have been different but for thealleged errors of his trial eounsel. Accordingly, Payne'sthird assigtiment of error is overruled.

[*625] ASSIGNMENT OI' ERROR IV

"TI-IE INDICTMENT FILEDAGAINST MICI-IAEL PAYNE WASENVALID PURS(;ANT `FO T'T-IE OI-IIOREVISED CODE AND Tt1E OHIORULES OF CRIMINALPROCEDURE[.]"

[**P21] In hisfout-th assignment of error, Payneargues that his indictment was invalid because it wasinitiated, rather than signed, by the grand jury foreperson.We disagree.

[**P22] Ohio law requires that an indictment beindorsed by the foreperson, by including the words "Attue bill" and subscribing his or her name. R.C. 2939.20.Ohio courts have long recognized a signature by mark aslegally valid where the signer intended to be so bound. In

Page 5

re Young (1978), 60 Ohio App.2d 390, 393, 397 N;E.2d

1223, quoting Sterha v. I;ienhar•d (1950), 58 Ohio L,aiv

Abs. 65, 95 N,E.2d 12. Ohio courts have also held that aforeperson's initials are a sufficient subscription. State v.

Creasey (2001), 8th Div: sTVo.s. 65717, 65718, 2001 Ohio

App. LEXIS 3953, *7, citing Dun v. State (1922), 17 Ohio

Alyp. 10; see, also, R,C. 2939.20. Therefore, Payne'sfourtlt assignment of error is overruled.

Ill.

[**P23] Payne's assignments of error are overruled.The judgment of the Summit County Court of CommonPleas is affirmed.

Judgment affirtned.

"1'he Court finds that there were reasonable groundsfor this appeal.

We orcier that a special mandate issue out of thisCourt, directing the Court of Cainmon Pleas, County ofSummit, State of Ohio, to carry this judgment intoexecution. A certified copy of this jourllal eutiy shallconstitute the mandate, pursuant to App.R. 27.

tinmediately upon the filing hereof, this documentshall constitute the journalentry of judgment, and it shallberile stamped by the Clerk of the Court of Appeals atwhich tin-ie the period for review shall begin to run.App.R. 22(E). The Clerk of the Court of Appeals isinstructed to mail a notice of entry of this judgment to theparties and to make a notation of the mailing in thedocket, pursuant to ARp.R. 30.

Costs taxed to Appellatit.

CARLA MOORE

I'ORTI-iE COURT

SLABY, J.

WHITMORE, J.

CONCUR